Excuse the pun, but let’s right here right now officially coin the term “ConText”. In Constitutional Law, Scotus decisions often turn on Context + Text = ConText.
ConText once again played out in the Supreme Court’s ruling this week saying no to two requests to stop New York’s vaccine mandate for health care workers. Health care workers claimed the vaccine mandate violated their rights under the Free Exercise Clause of the First Amendment, arguing that New York’s mandate was flawed because it only had exemptions for medical and not religious reasons. Justices Gorsuch, Alito and Thomas—the trio most likely to side with pro-religious free exercise arguments—dissented and would have blocked the mandate because it favored secular exemption (i.e. medical) over sectarian/religious.
The Free Exercise text meets the health care worker context. Let’s look at the what, how and why here. The “what”, i.e. the result, is clear: 6 Justices voted not to block the vaccine mandate. The how is that the 6 Justices issued an unsigned opinion with no reasons expressed. This “how” signals that the Court doesn’t want to become the vaccine super-police force by making big, broad declarations of Con Law rules applicable in all vaccine contexts. The “why” is opaque, since it was a no-opinion-order, but the health care context is likely the big why in a case involving a state’s interest in fighting a deadly pandemic with vaccinated health care workers.
The current Court has been called the “Free Exercise Court” because it’s dialed in on religious free exercise in a variety of ConTexts. For example, in another case before this Court, the issue involves the use of public money for private school education in Maine. The Pine Tree State, with a deficit of public school options for its low population areas, allows parents to use public money to attend non-religious private schools..but not religious ones. Does this violate the Free Exercise Clause by flowing money to non-religious schools while denying it to religious schools? Will the Court see religious free exercise in the education ConText differently than the health care vaccination ConText?
Historically the Supreme Court, in religion cases involving public money for education, has focused on the Establishment Clause: i.e. does a law “establish” a particular religion ( not okay under the First Amendment) by allowing a state to support a religious school? Now, with this Court majority, the Establishment Clause is moved to the sidelines and the question is one of Free Exercise: i.e. is a state favoring the secular over the sectarian?
The Court majority, seeing an increasingly secular American society, seems less worried about separation of church and state (i.e. Establishment Clause) and more worried about secular majority interests getting preferential treatment over religious minority ones. Will the same Court that gives less weight to religious objections of New York health care workers about vaccination give more weight to religious objections by Maine parents who see money going to secular schools but not religious schools? We’ll see…but in the meantime….